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Alan Dershowitz was recently interviewed by Michael Tracey on the latter's podcast. At 09:20 into the interview, Dershowitz makes the following claim regarding the USSR legal system:

... unlike in the Soviet Union, where everything you did was [a] crime unless there's a specific statute that says that what you did is legal; everything is illegal unless it's statutorily legal.

Now, I'm pretty sure that's false and merely anti-USSR cold-war-style propaganda, but I've never read up on the USSR's legal system - could I be wrong? Is there any basis for that claim?

Notes:

  • This question does not regard the rest of that interview, which isn't about the USSR at all.
  • I'm looking for official legal texts - constitution, "basic" laws, criminal/civil codes, etc.
  • If you happen to think that statement is a joke, that doesn't matter; I just want concrete evidence (which, if this is a joke, would be evidence to the contrary of the claim).
einpoklum
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    The claim seems like a [joke](https://www.quora.com/Can-anyone-help-me-pin-down-a-quote-I-cant-find-It-was-something-about-4-different-countries-and-how-to-judge-if-an-action-is-legal-or-illegal-Something-like-in-France-everything-is-legal-unless-and-in-Russia). But if Dershowitz was only talking about public authorities (which he may be, given the context), it [might not](https://en.wikipedia.org/wiki/Everything_which_is_not_forbidden_is_allowed) be that far fetched (I haven't yet found sources specifically about the USSR though). – tim Jun 01 '19 at 07:31
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    @tim: 1. Joke or not - I'd like to know whether there is any truth to this. 2. The tenor of Dershowitz's voice did not suggest he was joking; he did not try to elicit a reaction from the interviewer; and when telling a joke, you don't recap the humorous point after delivering it. So, it doesn't seem like a joke to me. – einpoklum Jun 01 '19 at 07:49
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    I guess the claim was more about juridical practice than actual, written law. Aleksandr Solzhenitsyn in __Gulag Archipelago__ describes several cases where it was the accused's duty to prove that he was innocent, not the other way around. – Przemysław Czechowski Jun 06 '19 at 06:47
  • So... i had an answer citing an academic book called 'Soviet Legal Theory' - it was deleted by @Oddthinking (?). Could you sharpen your question? What would satisfy as an answer? Are you looking for a Soviet Law stating 'Everything is forbidden until allowed' ? (My intro in the answer regarding German Law touched opon that, btw...) That's not going to happen. This will be about perception and application of the law, and how the law was allowing itself to be abused, etc. Please make clear what you want as an answer, especially in the light of the unclear definition of 'legal system'. – bukwyrm Jun 06 '19 at 07:12
  • @bukwyrm: See edit. Also, if no official legal text says something to that effect, then the answer to my question would be "no" - as I suspected. – einpoklum Jun 06 '19 at 09:32
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    ... so ... if there is a law saying : everything is legal, but murder and theft and jaywalking, that would fit your criterion for a 'no' but if there now was another law stating you can get jailed indefinitely (being then legally guilty) if randomly accused of jaywalking, because you have to prove your innocence, would that fit your criterion for yes, and if so, do you not think that the complex interplay of 1M+ words of legalese is best judged by academic works regarding its effects rather than raisin picking (or turd picking in this case) specific phrases? – bukwyrm Jun 07 '19 at 04:42
  • @bukwyrm: Yes, yes, and red-herring argument. Translations of USSR legal documents (the few that I've seen anyway) do not seem to have the second kind of statement, nor to be fantastically complex like you suggest. – einpoklum Jun 07 '19 at 06:10
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    This is Armenian Radio; our listeners asked us: “What is permitted and what is prohibited?” –– We’re answering: “In England, what is permitted, is permitted, and what is prohibited, is prohibited. In America everything is permitted except for what is prohibited. In Germany everything is prohibited except for what is permitted. In France everything is permitted, even what is prohibited. In the USSR everything is prohibited, even what is permitted. [medium](https://medium.com/iron-ladies/everyones-a-commie-dian-62f7e933524e) – LangLаngС Jun 07 '19 at 16:44
  • I heard it as "In the Soviet Union, everything which is not prohibited is mandatory". Very nice... :-) – Bob Jarvis - Слава Україні Jul 07 '19 at 14:42

2 Answers2

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According to the University of Cologne in Germany, the claim is not false for the time from the Russian Revolution until 1958. It is not entirely clear though if the claim is true for this time. It is fair to say, though, that the claim is false at least from 1958 onwards.

The principal is known as "nulla crimen sine lege" (no crime without law). So, as I understand it, if this principal is valid in a legal system, there has to be a law to make something illegal. In my interpretation that means everything is legal unless there is a law making it illegal.

In this explanation of the University of Cologne dealing with the principle it is stated that:

In Russia the principle was abolished during the Russian Revolution. According to the earliest Communist decrees, criminal courts were to render judgment on the basis of ‘revolutionary legal spirit’ (revolutionäres Rechtsbewusstsein). The Soviet Penal Codes of 1922 and 1926 permitted the criminalization of ‘socially dangerous acts’ through far-fetched reasoning by analogy. The nullum crimen principle was formally reintroduced in 1958 (Art. 6 Fundamental Principles of Criminal Legislation of the USSR and the Union Republics) but still remained inapplicable in practice for minor offences treated by non-professional Comrades' Courts. Today, the principle of legality is guaranteed in Art. 54 Constitution of the Russian Federation of 1993.

This means that the principle that establishes "everything is legal unless it is illegal (by law)" was not valid in the USSR from the Revolution until 1958. That said, this does not necessarily imply that everything was illegal unless it was legal (by law).

einpoklum
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redleo85
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    +1 for this. However, it seems that the claim is false before 1958 as well. The absence of "nulla crimen sine lege" as a principle does not make the _opposite_ true. It means that whether or not you can be convicted of something depends on the application of the (supposedly good faith) application of "revolutionary legal spirit" - which may theoretically differ from place to place and time to time and is not bound in advance to a certain set of crimes (or certain set of allowed acts). – einpoklum Jun 06 '19 at 18:33
  • Also - what are "non-professional comrades' courts"? What brings you before these courts. – einpoklum Jun 06 '19 at 18:35
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    @einpoklum yeah. I thought that was clear from the somewhat strange contruction of the first sentence, that the absence of NCSL does not necessarily mean the opposite to be true. IMO before 1958 it is difficult to make a thorough judgment whether the claim is true or false. I don't know what these "non-professional comrades' courts" are. I have a feeling there may still be a loop hole there. – redleo85 Jun 06 '19 at 19:29
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    even in a nulla sine system everything can be illegal, simply by having the law say so. This proves nothing in regard to OP's question, mostly because the question is bad. – bukwyrm Jun 07 '19 at 04:46
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    @einpoklum - your comrades. Kinda like trial by Twitter in modern USA – user5341 Jun 07 '19 at 15:00
  • Your first and last paragraph seem to contradict each other. – LangLаngС Jun 07 '19 at 16:50
  • @LangLangC in what way? – redleo85 Jun 07 '19 at 17:33
  • "claim is not false" until 1958, yet "That said, this does not necessarily imply that everything was illegal unless it was legal (by law)." To me that first line should read either claim is true, false or undecided. (and you know my conclusion…) But absence of one principle doesn't imply presence of a specific other? So how can the claim be labeled as either "not false" or "true" with you evidence here? – LangLаngС Jun 07 '19 at 17:38
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    @user5341: In the USSR, everyone was your comrade... at least colloquially so. Was this a workplace thing? A neighborhood thing? A party thing? – einpoklum Jun 07 '19 at 20:25
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    @einpoklum This is an ideology/language thing. In the you US your judged by your peers, in SU by your comrades. – LangLаngС Jun 07 '19 at 21:23
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    @einpoklum - as far as I know, it was more usually applied in workplace context but I'm not certain it was exclusive to it. https://ru.wikipedia.org/wiki/%D0%A2%D0%BE%D0%B2%D0%B0%D1%80%D0%B8%D1%89%D0%B5%D1%81%D0%BA%D0%B8%D0%B9_%D1%81%D1%83%D0%B4 / https://en.wikipedia.org/wiki/Burlaw_court – user5341 Jun 08 '19 at 00:24
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I don't have the source of a quote, but original sounds something like the following half-joke:

In America everything that is not prohibited, is allowed. In USSR everything that's not allowed, is prohibited.

This joke aims to highlight highly integrated political and regulatory system in the Soviet countries. This is also now called "vertical power structure" meaning that, in general, higher levels of hierarchy can dictate every minuscule detail of life on the bottom levels.

Currently, there is a petition #47914 on ROI website that collect official petitions from public for the Russian government, that says among other things (my lazy translation):

This petition asks goverment to explicitly add rule "all non-prohibited activities are allowed"

Idea that "everything not prohibited is allowed" stems from French revolution times (1789). [...] Unfortunately, currently Russia laws are not reflecting this, which leads to conversation such as:

— It is not prohibited, hence allowed

— Well, where did you read it? What law book?

Given that Russian laws are basically extension of the statutes of the USSR (some were copy-pasted from 1980s), I expect that USSR code didn't have explicit "what's not prohibited is allowed" spelled out.

Brythan
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aaaaa says reinstate Monica
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    The key reference here is a petition from a member of the public. Petitions don't have to be rigorously researched and aren't very rigorous. ([Here's an article](https://www.huffingtonpost.com.au/2011/10/04/et-petition-ufo-obama-we-the-people_n_987721.html) about one demanding the US President admit to contact with extraterrestrials.) I didn't find this very convincing. – Oddthinking Jun 01 '19 at 00:46
  • Actually, expecting such a statement in law can be interpreted as _re-enforcing_ the principle that only what's allowed isn't prohibited - since this statement allows everything which has not otherwise been referred to in law. – einpoklum Jun 01 '19 at 08:08
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    @Oddthinking given that IMHO original stems from a joke, I am not sure how much evidence you expect – aaaaa says reinstate Monica Jun 01 '19 at 16:53
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    @aaaaaa: I am confused. You claim it is a joke AND you claim there is a petition to overcome it? The heart of the questions is whether the "joke" a boiled-down summary of the truth or not. – Oddthinking Jun 01 '19 at 19:25
  • That joke is older than Soviet Union: In Germany everything that is not allowed is forbidden; in England everything is allowed that is not forbidden; in Russia everything is allowed that is forbidden. – LangLаngС Jun 05 '19 at 18:48